Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., et al.

(Federal Court) (Civil) (By Leave)


Constitutional law - Aboriginal law, Treaty rights, Administrative law, Boards and tribunals.


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Constitutional law — Aboriginal peoples — Aboriginal rights — Treaty rights — Administrative law — Boards and tribunals — Crown’s duty to consult and accommodate Aboriginal peoples — National Energy Board approving pipeline project for reversal flow, expansion of capacity, and exemptions from regulatory provisions — Board did not determine whether Crown’s duty to consult had been triggered nor satisfied — Whether Board as final decision-maker had mandate and capacity to discharge Crown’s duty to consult and assess adequacy of consultation — Whether administrative exercise of final decision-making authority amounts to “government conduct” sufficient to trigger Crown’s duty to consult — Whether an administrative tribunal’s regulatory process can rectify the absence or inadequacy of Crown consultation — Whether Federal Court of Appeal erred in concluding Board not required to determine whether Crown was under duty to consult, and if so, whether duty had been discharged

Enbridge applied to the National Energy Board (“NEB”) to approve a pipeline project – specifically, to reverse the flow of one section of an existing pipeline, expand the capacity of the pipeline, and exempt the project from certain regulatory requirements and procedures to allow for the transportation of heavy crude oil. The NEB approved the project, on specified terms and conditions. The Chippewas of the Thames First Nation appealed the NEB’s decision, citing, among other things, inadequate consultation. A majority of the Federal Court of Appeal dismissed the appeal, finding that, in the absence of the Crown as a participant in the original application, the NEB was not required to determine whether the Crown was under a duty to consult, and if so, whether the duty had been discharged. Nor was there any delegation by the Crown to the NEB of any power to undertake the fulfillment of any such duty. In dissent, Rennie J.A. would have allowed the appeal, concluding that the NEB was required to undertake a consultation analysis as a precondition to approving Enbridge’s application.